A federal judge in New York has rejected Live Nation’s bid to dismiss a lawsuit filed by the US Department of Justice and more than three dozen states that accused the ticketing giant of illegally dominating the live events market.
US District Judge Arun Subramanian on Wednesday (February 18) issued a 44-page ruling (read here), granting Live Nation’s motion for summary judgment on some claims while allowing others to proceed.
Three sets of claims survived, including federal and state allegations tied to Live Nation’s large amphitheater venues, claims in the so-called venue-facing ticketing market where the company’s Ticketmaster unit is accused of monopoly, and a range of state-law claims not subject to dismissal based on the resolution of the federal ones.
The DoJ sued Live Nation and Ticketmaster in May 2024, joining attorneys general from 29 states and the District of Columbia. They accused the ticketing giant and its subsidiary of “monopolization and other unlawful conduct that thwarts competition in markets across the live entertainment industry.” In August 2024, an additional 10 states joined the lawsuit.
The complaint accused Live Nation of illegally dominating the live events industry across six different markets, including concert promotion, venue ownership, concert-booking, and primary ticketing.
Judge Subramanian dismissed several of those claims, finding the government had failed to properly define the relevant markets.
“Fans typically buy tickets for concerts of artists that they want to see instead of venues that they want to attend. So if there were a market here, one would think it would be the market for selling concert tickets to fans.”
Arun Subramanian, US District Judge
On dismissing allegations of Live Nation’s monopoly in the fan-facing market, the judge said: “There’s no genuine dispute of material fact as to the government’s proposed nationwide fan-facing MCV-only ticketing market.”
MCV refers to “major concert venues,” which the government defines as arenas or large amphitheaters with a capacity of 8,000 or more.
“The government has failed to create a genuine dispute of material fact about this market,” the judge said, citing two reasons: “the government doesn’t put in dispute that it’s a market at all,” and that “there’s no reason here to limit the market to MCVs.”
“Fans typically buy tickets for concerts of artists that they want to see instead of venues that they want to attend. So if there were a market here, one would think it would be the market for selling concert tickets to fans.”
On the promotion market, the judge found that the government’s economic expert, Dr. Nicholas Hill, had used a flawed method to estimate how artists would respond to a price increase.
The judge wrote: “The show-weighted analysis then suffers from another fatal flaw. Hill explicitly gives greater weight to artists who play more often at MCVs.”
Judge Subramanian wrote that Hill’s analysis wasn’t “a reasonable measure of economic substitution” as the test turns on how consumers react to a price hike, but Hill instead measured where artists performed after playing an amphitheater, which the judge said could simply reflect what venues happened to be available in a certain city.
“That doesn’t measure anything concerning any particular MCV, let alone anything to suggest the artist’s reaction to a price hike or worsening of terms for that MCV. Instead, it just says where artists go next—a different venue, possibly in a different city. Absent further support in the record, it isn’t related to economic substitution and the cross-elasticity of demand.”
“While the ticketing needs of venues might vary based on their size and dependency on concerts, fans aren’t tied to either of those things. They see the artists they want to see, wherever they might be playing, whether it’s a stadium, an arena, a large or small theater, or a church.”
Arun Subramanian, US District Judge
The DoJ’s claims about Live Nation’s monopoly in the fan-facing ticket market also collapsed. Judge Subramanian found the government hadn’t shown that fans actually think about or shop for concerts by venue category, but instead to see specific artists, not to attend a particular venue.
“While the ticketing needs of venues might vary based on their size and dependency on concerts, fans aren’t tied to either of those things. They see the artists they want to see, wherever they might be playing, whether it’s a stadium, an arena, a large or small theater, or a church,” the judge wrote.
Of the government’s claims, what survived was the DoJ and the state’s claims related to the market for large amphitheaters. The government claims that Live Nation improperly “tied” its amphitheaters to concert promotion.
“[T]he government has pointed to more concrete evidence that the tie is imposed on artists. That includes a situation in which an artist wanted to play at a Live Nation amphitheater with a different promoter but was rebuffed because the amphitheater was ‘off limits to’ that promoter and Live Nation had “paid a premium for the [venue] to keep [the promoter] from having access within our season.’”
“[T]he government has pointed to more concrete evidence that the tie is imposed on artists. That includes a situation in which an artist wanted to play at a Live Nation amphitheater with a different promoter but was rebuffed because the amphitheater was ‘off limits to’ that promoter…”
Arun Subramanian, US District Judge
In March last year, Judge Subramanian already rejected Live Nation’s attempt to dismiss the “tying” claim. The judge wasn’t swayed by the company’s arguments against the claim, which accused Live Nation of forcing artists to use its concert promotion services if they want to perform at Live Nation-owned venues.
Meanwhile, the ticketing claims were also cleared by the court for trial. The government presented evidence of Ticketmaster threatening to steer concerts away from venues that didn’t renew ticketing contracts with it including testimony from executives describing warnings that choosing a rival ticketer would mean fewer Live Nation shows.
The judge also cited another testimony “from a different venue executive that a ‘senior person at Ticketmaster’ told him that the venue ‘would probably never see a Live Nation show if [they] were a SeatGeek building,’ informing his ‘understanding … that they would punish us for not using Ticketmaster.’”
Jury selection is scheduled to begin on March 2. A final pretrial conference is scheduled for February 23.
Live Nation has separately moved to bifurcate the trial “so that only the Plaintiff States’ claims are tried to the jury and not any of the Department of Justice’s claims,” according to a court document, which you can read here.
Citing the need to minimize prejudice to Live Nation, the company’s lawyers wrote: “DoJ has made clear it intends to introduce and rely on evidence outside the four-year statute of limitations in attempting to prove its claims.”
In late November, Live Nation filed a motion asking for a quick end to the DoJ’s antitrust case, saying the lawsuit is based on “gerrymandered” evidence that doesn’t meet the legal criteria for monopoly power.
On Wednesday, Bloomberg News reported that several state attorneys general say they are prepared to pursue the trial against Live Nation even if the DoJ reaches a settlement with the company.
In addition to the lawsuit brought by the DoJ and 39 states, Live Nation is also facing litigation from the US Federal Trade Commission, which has accused the company of profiting from scalpers operating on its platform. Joining the FTC in the lawsuit are the attorneys general of seven states: Colorado, Florida, Illinois, Nebraska, Tennessee, Utah and Virginia.
Live Nation asked a federal judge to throw out that lawsuit last month.
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